Stare Decisis: Dueling Legal Interpretations of the Douglas County, Colorado Choice Scholarship Program

ABSTRACT

In the absence of incontrovertible performance data in support of, or opposition to, school vouchers, court decisions on their legality become increasingly important. Analysis of legal challenges provides a rich opportunity for scholars and policymakers to follow arguments for or against their positions. We present a chronicle of the litigation history of the Douglas County, Colorado Choice Scholarship Program; a voucher program incorporating religious-based “public school partners” in which voucher recipients may enroll. We take particular notice of the differences in the way identical fact bases are interpreted by successive jurists. At this writing, the Choice Scholarship Program has been permanently enjoined from operating but further appeal to the U.S. Supreme Court would surprise no one.

KEYWORDS:

• Blaine Amendments
• church/state
• litigation
• school choice
• vouchers

Notes

1. Two separate lawsuits—James LaRue et al. v. Colorado Board of Education et al. (11CV4424) and Taxpayers for Public Education et al. v. Douglas County School District RE01 et al. (11CV4427), were combined. For the most part, we will refer to these combined cases as LaRue in the District Court context and Taxpayers in the subsequent appeals.

2. id, or–sometimes–ibid., stands for the Latin word, ibidem, which is used to refer to a source that was cited immediately previously.

3. There was no dispute that they had standing to raise the constitutional questions.

4. Quoting from the Becket Fund for Religious Liberty, “Blaine Amendments are provisions in dozens of state constitutions that prohibit the use of state funds at “sectarian” schools. They’re named for James G. Blaine, who proposed such an amendment to the U.S. Constitution while he was Speaker of the U.S. House of Representatives in 1875. The amendment passed overwhelmingly (180–7) in the House, but failed (by 4 votes) in the Senate. Although the amendment failed narrowly, state-level versions were wildly successful (Becket, n.d.).

5. Certiorari literally means “to be more fully informed.” It refers to the appellate court’s order to a lower court to deliver its record in the case so that the appellate court may review it. In essence, it signifies that the Court is willing to consider the case.